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Education briefing - The Office for Students’ Statement of Expectations on Harassment and Sexual Misconduct: A Positive Challenge for English HE Providers to Grasp

  • United Kingdom
  • Education - Briefings

20-04-2021

 

The Office for Students published yesterday its long awaited statement of expectations for HE providers in England on preventing and responding to harassment and sexual misconduct.

In the accompanying blog (“How we expect universities and colleges to tackle harassment and sexual misconduct”) Nicola Dandridge, OfS Chief Executive, explains that the statement provides “a clear and consistent set of standards for colleges and universities to help them to develop and implement effective systems, policies and processes to prevent and respond to incidents of harassment and sexual misconduct”, not just on campus but “beyond … to social media and the internet, where harassment is increasingly prevalent”.  The definitions of harassment and sexual misconduct which the statement contains are broad ones and include harassment based on age, disability, gender reassignment, race, religion or belief, sex and sexual orientation, hate crime, domestic violence, abuse and stalking, and all unwanted conduct of a sexual nature, and through any medium including online.

Nicola Dandridge has stated that the expectations “provide a standard” and it “is now for all universities and colleges registered with the OfS to put these principles into practice”.

Systems, policies and processes

The OfS’s mantra of “systems, policies and processes” (the bedrock of institutional student and staff regulation generally) supports the focus of its recommendations including on:

  • a visible and ongoing commitment from senior leaders and  governing bodies to preventing and responding to all forms of harassment and sexual misconduct
  • clear, accessible and effective routes and mechanisms for students to make reports, disclosures and complaints
  • making students feel confident that reports and disclosures of incidents will be responded to appropriately, effectively and sensitively
  • the provision of appropriate, meaningful and timely support for students
  • proactive and meaningful collaboration and engagement with students’ unions and students generally which reflect the diversity of students and their experiences and modes and levels of study
  • clear statements to students, staff and visitors as to what constitutes acceptable and unacceptable behaviour and sanctions that may be imposed for breach
  • adequate, appropriate and effective governor, staff and student training and awareness raising
  • clear and fair investigatory and decision-making complaints and disciplinary processes and associated timescales, and clarity on potential outcomes and appeals
  • clear explanations of how confidential information will be used and shared within investigatory and disciplinary processes
  • appropriate protocols for timely communications with reporting and responding parties
  • outcomes of investigatory processes being provided to reporting and responding parties where providers are able to share this information
  • access to appropriate, effective and equitable support for students involved in investigatory processes
  • clear governance accountability and routine reporting to governing bodies.

Nothing radical or novel, but full steam ahead

Providers will find nothing radical or novel in the OfS’s recommendations contained in the statement of expectations or in the broad nature of the misconduct that they address.  That said, it will be critical that providers have a very clear and firm understanding of the dividing line between the nature and remit of their own legal and procedural jurisdiction and powers and that of the criminal law and criminal justice system.  In addition, what will undoubtedly be needed in practice is an agile, innovative and progressive grasping (to adopt OfS’s terminology), once and for all, of the issues and challenges raised by this key sector agenda and the unequivocal commitment of sufficient institutional understanding, time, resources and energy to ensure that preventative strategies and incident responses are effective and timely.

In her blog Nicola Dandridge comments that “Despite some improvements, progress has been uneven” and that OfS “still see a lack of consistent and effective systems, policies and procedures across the sector.”  This may perhaps be taken by some to support a view that the sector has been slow out of the starting blocks and has some ground to make up.  Whatever arguments may be put forward here, what OfS has made clear is that “Dealing effectively with harassment and sexual misconduct – wherever it may occur – will require action, commitment and collaboration”.

Expectation not regulation

The OfS has also made clear that, at this stage at least, it is not linking the statement of expectations to specific registration conditions and that the statement “sets out expectations, not regulatory requirements”.  Indeed, OfS is affording providers a period of time “to review their policies, systems and procedures before the next academic year drawing on these expectations”.

Governing bodies and senior leaders should not be complacent, however, as to the scale of the task ahead of them.  Many institutions, indeed the sector as a whole, may require at least this period of time to get their house in order and ensure that their systems, policies and procedures are truly fit for purpose.  Providers will wish to avoid the statement of expectations being used not (as Nicola Dandridge describes it) as “a yardstick” to assist in “ensuring students have confidence that cases of harassment and sexual misconduct will be properly addressed” but as a regulatory enforcement stick for institutions which are regarded as having done too little too late. The OfS has made clear that it will be considering over the next year how providers have responded to its recommendations, and hearing from students about those responses, and that it “will consider options for connecting the statement directly to our conditions of registration”.

Remaining mindful of wider legal and regulatory obligations

In addition, the OfS has explained that, in tackling the issues which the statement of expectations addresses, providers will need to be mindful of their obligations under statute, including those relating to equality and the Public Sector Equality Duty, freedom of speech and academic freedom, in addition to existing OfS regulatory requirements. 

A positive challenge

There is no doubt that harassment and sexual misconduct remain fundamental challenges for the sector.  But the key message for providers to take is that, with commitment, effort and determination, a sense of urgency, support for students, and training and support for staff, providers can meet these challenges head on to seek to ensure that the safety of students, staff and visitors is protected and that the learning and working experiences of students and staff are the positive ones they deserve to be.